Delivers the following judgment, which was adopted
on the last-mentioned date:

PROCEDURE

1. The case originated in an application
(no. 48140/99) against the Republic of Poland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by Teltronic-CATV, a
limited liability company registered in Poland (“the applicant company”),
on 25 January 1999.

2. The applicant company was represented
by Mr J. Gałkowski, a lawyer practising in Bielsko-Biała. The Polish
Government (“the Government”) were represented by their Agent, Mr
J. Wołąsiewicz, of the Ministry of Foreign Affairs.

3. The applicant company alleged that
it had been deprived of its right of access to a court.

4. The application was allocated to the
Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.

5. On 1 November 2004 the Court changed
the composition of its Sections (Rule 25 § 1). This case was assigned
to the newly composed Second Section (Rule 52 § 1).

6. By a decision of 3 May 2005, the Court
declared the application admissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7. On 15 April 1997 the applicant company
filed a claim against the Best-Sat company in the Bielsko-Biała District
Court (Sąd Rejonowy). The value of the claim was PLN 246,969.86. The
claim resulted from Best-Sat’s refusal to pay the applicant company’s
invoice issued on 8 October 1995 for the construction of a TV cable
network, in accordance with the contract concluded between the parties.
The applicant company requested that its claim be considered in a summary
procedure (postępowanie nakazowe).

8. On 24 April 1997 the District Court
decided that the case should be considered in the ordinary procedure
as it did not fulfil the legal conditions for the summary procedure.
On 14 May 1997 the applicant company filed with the Bielsko-Biała District
Court an interlocutory appeal (zażalenie) against the decision of 24 April 1997. Subsequently,
the court ordered the applicant company to pay a court fee of PLN 2,789.60
for the consideration of its interlocutory appeal. On 10 June 1997 the
applicant filed with the Bielsko-Biała District Court an application
for an exemption from that fee. However, on 21 July 1997 the District
Court dismissed that application. The applicant filed another, apparently
unsuccessful, interlocutory appeal against the decision of 21 July 1997,
claiming that the company was on the brink of insolvency as a result
of its enforceable claims not having been satisfied by the Best-Sat
company.

9. On an unspecified later date, the
case was transmitted to the Bielsko-Biała Regional Court (Sąd Wojewódzki) in order to be considered in the ordinary
proceedings. On 3 February 1998 the Regional Court ordered the applicant
company to pay a court fee of PLN 13,948.49 for lodging its claim.

10. On 17 February 1998 the applicant
company filed with the Bielsko-Biała Regional Court an application
for an exemption from the fee, pursuant to section 113 § 2 of the Code
of Civil Procedure. It stated that the amount of the fee was considerably
beyond its means. It also submitted that, for the first 10 months of
1997, it had made net profits of only PLN 7,695.37, while the company’s
assets amounted to PLN 31,366.98, but consisted mostly of claims to
be satisfied.

11. The applicant company stressed that
it had no possibility to dispose of its assets promptly in order to
secure funds to pay the court fee and, even if that were possible, it
would lead to the winding up of the company. It further argued that
the lack of funds to pay the court fee did not result from any fault
in its activities or from a negligent failure to secure funds for the
litigation. It also maintained that its claim resulted from work done
over the past few years which had dominated the activities of the company.
Consequently, it did not have other possibilities to secure sufficient
funds from other contracts.

12. On 2 March 1998 the Regional Court
ordered the applicant company to produce a number of documents concerning
its financial situation. The relevant documents were submitted to the
court as enclosures to a letter of 16 March 1998. In the same letter
the applicant supplemented its application for exemption from the court
fees. It stated that it had three enforceable claims, including two
against the Best-Sat Company which were the subject of the pending litigation.
The third claim, although enforceable as of 25 November 1997, had not
been satisfied. The applicant company stated that its fixed assets of
PLN 11,670.90 were necessary to continue the running of its business
and, if disposed of, the company would have to be wound up. The plaintiff
also submitted that in 1997 it had made net profits of PLN 2,723.19,
which were used to set off the losses made in 1995 and 1996.

13. On 25 May 1998 the Bielsko-Biała
Regional Court rejected the application. The court gave the following
reasons for its decision:

“At the request of the court, the plaintiff
has submitted its balance sheets as of 30 November 1997 and of 30 March
1998, as well as a bank statement regarding its accounts as of 17 March
1998. In the court’s view the above documents prove unequivocally
that the plaintiff makes profits from its business, as evidenced by
the balance on its bank accounts for the period between December 1997
and March 1998. It should also be pointed out that the plaintiff has
gross profits (przychód) from its business activity estimated at PLN 26,322.95,
including gross profits from the sale of goods and materials in the
amount of PLN 2,365.81.

Furthermore, according to the balance sheet of
3 March 1998, the plaintiff company has significant fixed assets (majątek trwały)
in the amount of PLN 7,192.67, and current assets (majątek obrotowy) in the amount of PLN 31,067.97.

The examination of the above documents leads
to the conclusion that the plaintiff can afford to pay the court fees
because it has sufficient funds.

It should also be pointed out that, in case of
a lack of such funds, the plaintiff could obtain them by means of partners’
surcharges (dopłaty) since it is a limited liability company.

All the other expenses of the plaintiff should
be treated by it on equal terms with the expenses which are necessary
to pursue its claims...”

14. On 4 June 1998 the applicant company
filed an interlocutory appeal against the decision of 25 May 1998 with
the Katowice Court of Appeal. It submitted that the District Court had
made a mistake in calculating the amounts of fixed and current assets
because the figures relied on were from 1 January 1997, but the value
of the assets had decreased since then. As of 31 January 1998 the amount
of fixed and current assets was estimated at PLN 5,019.27 and PLN 18,494.77
respectively. The applicant company argued that the combined value of
all its assets only slightly exceeded the amount of the court fee, and
that, if the latter had to be paid in that amount, the company would
be forced to wind up.

15. The applicant company further pointed
out that the fixed assets consisted of office equipment which was necessary
to run the business, whereas its current assets consisted mostly of
reserves of materials necessary to provide services to clients and claims
which were the subject of separate litigation. Thus, even assuming that
the value of current assets exceeded the amount of the court fee, it
could not be presumed that the former could be disposed of in order
to provide the funds necessary to pay that fee.

16. The applicant company also contested
the Regional Court’s view that all expenses should be treated equally,
and pointed out that any surplus would be used to pay taxes since failure
to do so could result in prosecution. Finally, the applicant observed
that the unpaid invoice which gave rise to the present claim related
to work done by the applicant company over a period of two years, which
had dominated the applicant’s business during that period. That was,
to a large extent, the reason why the applicant company had been unable
to secure funds for possible litigation expenses. Lastly, the applicant
company, in principle, agreed with the Regional Court’s view as to
the possibility of obtaining additional funds by means of partners’
surcharges. However, relying on section 113 § 2 of the Code of Civil
Procedure, it stressed that a legal person was entitled to exemption
from court fees if it proved that it did not have sufficient funds.

17. On 31 July 1998 the Katowice Court
of Appeal rejected the applicant’s appeal as follows:

“According to the plaintiff’s documents,
its financial situation deteriorated only in 1998. However, it emerges
from the documents produced in support of the statement of claim that
the plaintiff’s claim results from work done between 1993 and 1995,
since the notice to pay for that work is dated 16 January 1995. From
that it unequivocally follows that the plaintiff could have secured
the funds necessary for the pursuance of its claims prior to 1996 when
its financial situation deteriorated, and when, as it transpires from
its balance sheets, its assets and gross profits from the sale of goods
and materials had been at the level which had been referred to in the
contested decision.

The Court of Appeal also does not subscribe to
the plaintiff’s view that, if at the current moment the plaintiff
does not have sufficient funds to pay the court fee, then it can successfully
request to be exempted ... under section 113 § 2 of the Code of Civil
Procedure.

As follows from the established case-law of the
Supreme Court, and also the case-law of this Court of Appeal, the possibilities
of paying the court fees by a legal person should be assessed in the
larger context not only of the funds currently held but also those that
could possibly have been secured. When the plaintiff holds a current
bank account, where its turnover is recorded, and that turnover still
in December 1997 was of significant volume, then there are no reasons
to assume that the plaintiff could not take out the necessary loan in
order to obtain the funds needed to pursue claims of the very significant
value of PLN 246,969.86. Obviously, interest will be charged on such
a loan, but there are no grounds to hold that the cost of such a loan
should be borne by the taxpayers, which would happen if exemption from
court fees was granted...

The Court of Appeal also fully shares the Regional
Court’s argument that, since the plaintiff is a limited liability
company, the obligation of the partners to make appropriate surcharges
in order to secure funds to cover expenses related to the assertion
of claims should be taken into consideration...”

18. The applicant company did not pay
the required court fee. On an unspecified later date, the Bielsko-Biała
Regional Court ordered that the applicant company’s statement of claim
be returned to it, which meant that its claim was of no legal effect.

19. According to the applicant company’s
tax return for 1997, in that year it made net profits of PLN 4,484.70.

II. RELEVANT
DOMESTIC LAW AND PRACTICE

20. Under Polish law every plaintiff
is obliged to pay a court fee at the time of lodging a statement of
claim with a court. As the case proceeds, either party is obliged to
pay further court fees at the time of lodging any appeal, unless granted
exemption from such fees.

Court fees are based on a percentage
(if a fee is due for lodging a claim or an appeal) or a fraction (if
a fee is due for lodging an interlocutory appeal) of the value of the
claim in question. The court fees incurred by either party can, depending
on the outcome of the litigation, be finally repaid by the losing party
(who, in principle, is ordered to pay all the costs of litigation in
a final judgment).

21. There are, however, categories of
litigants who are exempted from court fees by virtue of statutory provisions.
Some of those categories are listed in Article 111 § 1 of the Code
of Civil Procedure. That provision, in the version applicable at the
relevant time, exempted from court fees a party lodging a paternity
action, a party seeking maintenance, a prosecutor, a court-appointed
guardian and “any party exempted from court fees by the competent
court” (that is to say, a party who had been granted an exemption
under Article 113 of the Code, cited below).

22. The other categories of exempted
litigants are listed in, inter alia, sections 8 and 9 of the Law of 13 June 1967 on
Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawachcywilnych). Under section 8 of the Law, the State Treasury,
municipalities and other public organs or institutions are not obliged
to pay court fees, provided that the claim in question does not relate
to their business activities.

23. In the case of a successful outcome
of litigation initiated by a person exempted from court fees, the fees
which would normally have been collected from that person for lodging
and proceeding with the claim are awarded to the State Treasury against
the opponent.

24. The Law of 13 June 1967 on Court
Fees in Civil Cases (as amended) sets out general principles with respect
to the collection of fees by courts. Section 5(1) of the Law, in the
version applicable at the material time, stipulated:

“Unless otherwise provided by the law, a party
who has submitted to a court a pleading which is subject to court fees,
shall pay such fees.”

25. The relevant part of section 16 of
the Law, in the version applicable at the material time, provided as
follows:

“1. The court shall not take any action if the
court fee due for lodging a given pleading is not paid. In such a case
the president of the court shall order the party concerned to pay the
fee due within a period not exceeding seven days, on pain of having
the pleading returned. If the party does not comply with the time-limit,
the pleading shall be returned to this party.

...

3. Any appeal, cassation appeal, interlocutory
appeal or objection to a judgment by default ... shall be rejected if
the court fee due is not paid within the [above] time-limit.”

26. Section 18 provided:

“A pleading which has been returned to a party
as a result of the fact that the court fee had not been paid, shall
be of no legal effect.”

27. Exemption from the payment of court
fees was (and still is) a matter for the discretion of the court competent
to deal with the case. According to Section 112 § 2 of the Code of
Civil Procedure, the competent court may grant partial exemption from
the fees.

Article 113 § 1 of the Code of Civil
Procedure, in the version applicable at the material time, stipulated:

“An individual may ask the competent court
dealing with the case to grant him an exemption from court fees provided
that he submits a declaration to the effect that the fees required would
entail a substantial reduction in his and his family’s standard of
living. Such a declaration shall contain details concerning his family,
assets and income. It falls within the court’s discretion to assess
whether or not the declaration satisfies the requirements for granting
the exemption requested.”

28. The grounds for exempting legal persons,
companies and business enterprises from court fees were, however, formulated
in a different way from the grounds applying to natural persons. Paragraph
2 of Article 113 of the Code of Civil Procedure in the version applicable
at the relevant time read:

“A legal person, or an entity not possessing
legal personality, which has demonstrated that it does not have sufficient
financial means for court fees, may be granted an exemption from those
fees.”

29. Article 116 § 1 of the Code of Civil
Procedure provides:

“In case of doubt ... as to the real financial
situation of the party requesting exemption from court fees, the court
may order a verification of [his/her] declaration.”

30. Article 116 § 2 of the Code of Civil
Procedure reads:

“The court shall refuse to grant a party [to
the proceedings] exemption from court fees if [his/her]claim or defence
are of a manifestly ill-founded character.”

31. The relevant part of Article 120
§ 1 of the Code, in the version applicable at the material time, stated:

“The court shall revoke an exemption from court
fees or legal assistance granted if the basis therefor did not exist
or has ceased to exist. In either instance, the party concerned shall
pay all court and/or legal fees due in the case...”

32. Fees collected by courts do not constitute,
nor are they equivalent to, security for costs. The court fees are transferred
by financial departments of the courts to the State Treasury and are
deemed to be part of its income.

33. On 11 January 1995 the Supreme Court (Sąd Najwyższy)
gave a decision in which it referred for the first time to the “right
to a court” guaranteed under Article 6 § 1 in the context of the
requirement to pay court fees for lodging a claim or appeal (decision
no. III ARN 75/95, published in OSN Zb. U. 1995, no. 9).

That ruling concerned an extraordinary appeal
lodged by the First President of the Supreme Court with the Supreme
Court. The appeal was directed against a decision of the Supreme Administrative
Court, refusing to exempt a claimant in administrative proceedings from
payment of court fees. The Supreme Court held as follows:

“1. From the date on which Poland became a member
of the Council of Europe, the case-law of the European Court of Human
Rights in Strasbourg may and should be taken into account in interpreting
Polish law.

2. If the subject matter of a case is the party’s
application for substantial financial assistance from the public authorities,
particular diligence should be displayed in considering [that party’s]
parallel application for an exemption from court fees. [Any decision]
rejecting such an application should give relevant and particularly
cogent reasons so as not to amount to an actual denial of the right
to a court (as secured by Article 6 of the European Convention of Human
Rights) ...”

Although the relevant decision related to court
fees for lodging an appeal with the Supreme Administrative Court by
a person who had requested financial assistance from the public authorities,
it has been applied mutatis mutandis to civil cases.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6
§ 1 OF THE CONVENTION

34. The applicant company complained that its
right of access to a court, guaranteed by Article 6 §1 of the Convention,
had been violated because the excessive amount of court fees required
for lodging its claim resulted in the claim not being examined by the
court. Article 6 § 1 of the Convention, in so far as relevant, provides:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”

A. The parties’ submissions

1. The applicant company

35. The applicant company submitted that it had
been deprived of the effective right of access to a court, guaranteed
by Article 6 § 1, as a result of the courts’ refusal to exempt it
from the court fees which it could not afford to pay. This refusal,
in turn, prevented it from pursuing its claims in court.

36. The applicant company argued that the amount
of the court fee at issue had been disproportionate. It maintained that
there was no justification to distinguish between natural and legal
persons as regards their applications for an exemption from court fees.
It stressed that, under Polish law, both natural and legal persons could
apply for such exemption on very similar grounds. In respect of both
categories of persons, the decisive element was the actual impossibility
to pay the court fees because of an unintentional lack of resources.

37. The applicant company also submitted that,
in accordance with the laws applicable at the relevant time, following
the issue of the invoice of 8 October 1995, it had been obliged to pay
a VAT bill (PLN 44,486.32) by 25 November 1995 and, in the same month,
to pay income tax on the amount due, regardless of the fact that its
invoice had not been paid by the Best-Sat company. In case of failure
to pay those taxes, the persons in charge of the company risked prosecution.

38. Furthermore, the applicant company maintained
that it had attempted to take a loan in order to provide funds for the
litigation. However, no bank had been prepared to grant such a loan,
given the company’s difficult financial situation.

39. In respect of the reasons relied on by the
Bielsko-Biała Regional Court in its decision of 25 May 1998, the applicant
company submitted that the Regional Court had erred in apparently equating
its gross profits with net profits. Likewise, the Regional Court had
been wrong in concluding that the value of the applicant company’s
fixed and current assets had enabled it to pay the court fees, since
those assets had been indispensable for the running of the company.
Had the applicant company disposed of those assets, it would have had
to have been wound up.

40. As regards the argument that the relevant
funds could have been obtained by means of the partners’ surcharges,
it stated that it had been a small limited liability company and the
partners had had no real possibility of providing additional capital
for its activities. As to the argument about the allegedly late submission
of the principal claim to the court, the applicant company explained
that it had first attempted to pursue its claims out of court, which
had delayed matters.

2. The Government

41. The Government submitted that, under Polish
law, there was a general obligation to pay court fees for lodging claims
with the courts. They recalled that that obligation could not be regarded
as a restriction on the right of access to a court that is incompatible per se
with Article 6 § 1 of the Convention. Having regard to the fact that
the applicant company was a legal person engaged in a commercial activity,
as opposed to a natural person on an average income, the Government
argued that the amount of the court fee at issue should not be seen
as disproportionate, especially in the light of the overall value of
the claim.

42. They further maintained that there was nothing
untoward in requiring the applicant company to take a loan in order
to pursue its claims before the courts. They also stated that the applicant
company could have instituted proceedings against the Best-Sat company
earlier.

43. The Government argued that it was generally
accepted that commercial entities should take into account the possible
need for litigation. In their submission, that necessity was part of
the risks involved in running a business. They further stressed that
the applicant company’s partners could have made appropriate surcharges
to secure the funds necessary to pay the court fees.

44. In conclusion, the Government submitted that
the court fee at issue had been imposed on the applicant company pursuant
to a general binding rule in civil proceedings. They argued that the
imposition of the court fee had had a legitimate aim and that its amount
had neither been disproportionate to the applicant company’s means
nor arbitrary.

B. The Court’s assessment

1. General principles deriving from the
Court’s case-law

45. Article 6 § 1 secures to everyone the right
to have any claim relating to his civil rights and obligations brought
before a court or tribunal. In this way, that provision embodies the
“right to a court”, of which the right of access, that is the right
to institute proceedings before a court in civil matters, constitutes
one aspect only; however, it is an aspect that makes it in fact possible
to benefit from the further guarantees laid down in paragraph 1 of Article
6 (see, among many other authorities, Golder v. the United Kingdom, judgment of 21 January 1975, Series
A no. 18, pp. 16-18, §§ 34 in fine and 35-36, and Kreuz v. Poland, no. 28249/95, §§ 52 et seq., ECHR 2001-VI).

46. The “right to a court” is not absolute.
It may be subject to limitations permitted by implication because the
right of access by its very nature calls for regulation by the State.
Guaranteeing to litigants an effective right of access to courts for
the determination of their “civil rights and obligations”, Article
6 § 1 leaves to the State a free choice of the means to be used towards
this end but, while the Contracting States enjoy a certain margin of
appreciation in that respect, the ultimate decision as to the observance
of the Convention’s requirements rests with the Court.

47. The Court has accepted that in some cases,
especially where the limitations in question related to the conditions
of admissibility of an appeal, or where the interests of justice required
that the applicant, in connection with his appeal, provide security
for costs to be incurred by the other party to the proceedings, various
limitations, including financial ones, may be placed on his or her access
to a “court” or “tribunal”. However, such limitations must pursue
a legitimate aim and there must be a reasonable relationship of proportionality
between the means employed and the legitimate aim sought to be achieved
(see, for instance, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports of Judgments
andDecisions 1997-VIII, p. 2955, § 33, and Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995,
Series A no. 316-B, pp. 80-81, §§ 61 et seq.).

48. The requirement to pay fees to civil courts
in connection with claims or appeals cannot be regarded as a restriction
on the right of access to a court that is incompatible per se with Article 6 § 1 of the Convention. However, the
amount of the fees assessed in the light of the particular circumstances
of a given case, including the applicant’s ability to pay them, and
the phase of the proceedings at which that restriction has been imposed,
are factors which are material in determining whether or not a person
enjoyed that right of access and had “a ... hearing by [a] tribunal”
(see Kreuz and Tolstoy-Miloslavskyjudgments, cited above).

49. The Court recalls that its task is
not to substitute itself for the competent domestic authorities in determining
the most appropriate means of regulating access to justice, nor to assess
the facts which led those courts to adopt one decision rather than another.
The Court’s role is to review under the Convention the decisions that
those authorities have taken in the exercise of their power of appreciation
and ascertain whether the consequences of those decisions have been
compatible with the Convention (see, mutatis mutandis, Tolstoy-Miloslavsky, cited above, ibid., and Brualla Gómez de la Torre, cited above, p. 2955, § 32 in fine).

2. Application of the above principles
to the present case

50. In the present case the applicant
company was prevented from pursuing its claims in court on account of
the refusal to exempt it from the court fee of PLN 13,948.49 for lodging
its action. The applicant company argued that it was unable to pay the
court fee at issue.

51. The Government underlined that the
applicant company was a legal person engaged in a commercial activity
and argued that, as such, it had to secure in advance funds for potential
business-related litigation. The Government also maintained that the
amount of the court fee at issue could not be considered disproportionate
given the overall value of the claim sought.

52. The Court notes that the applicant
company was a small limited liability company1
which in 1993-1995, under contract, constructed a cable TV network for
the Best-Sat company. The latter company refused to pay the applicant
company’s invoice of 8 October 1995 in the amount of PLN 246,969.862.
It appears that, regardless of that refusal, the applicant company was
required to pay in November 1995 a substantial VAT bill of PLN 44,486.323
on that amount4,
as well as income tax. It is noteworthy that the failure to meet the
tax obligations could result in prosecution of the persons in charge
of the applicant company. It also appears that the refusal to pay the
said invoice put the applicant company on the brink of insolvency.

53. The Court observes that in the instant
case, the domestic courts, when refusing the applicant company’s request
for exemption from the court fee at issue, relied on the amount of its
gross profits and the value of its fixed and current assets. Furthermore,
the courts considered that the applicant company could have secured
the funds necessary for litigation before its financial situation had
deteriorated. They held that the applicant company could have obtained
a bank loan or required the company’s partners to make appropriate
surcharges (see paragraphs 13 and 17 above).

54. However, the Court does not find
those grounds persuasive, in particular when weighed against the importance
of securing to the applicant company “effective” access to a court.

55. The Court first observes that the
judicial authorities appeared to equate the applicant company’s gross
and net profits. On that basis, they concluded that the applicant company
did have sufficient funds to pay the court fee.

56. Secondly, the judicial authorities
assumed that the company’s assets, whose value had been slightly higher
than the required court fee, could provide the funds needed to pay that
fee. However, by doing so, they disregarded the reasonable objection
of the applicant company that the disposal of those assets would lead
to the company’s winding-up.

57. Thirdly, the judicial authorities
found that the applicant company could secure the necessary funds at
an earlier stage of its activities. In this connection, the Government
also argued that engaging in a commercial activity implied an obligation
to secure in advance the funds for potential litigation. In the present
case the Court does not find it necessary to pronounce itself on the
Government’s submission. However, in its view, the possibility of
securing in advance the funds for court fees appears to be rather hypothetical,
given the fact that the bulk of the applicant company’s activities
was related to the unpaid work done for the Best-Sat company over a
substantial period of time (see paragraph 11 above).

58. Fourthly, the domestic courts referred
to the possibility of taking a bank loan in order to pay the fee at
issue. However, it appears questionable how the applicant company, which
had been on the verge of insolvency, could obtain such a loan. In addition,
the applicant company submitted that it had attempted to obtain such
loan but to no avail (see paragraph 38 above).

59. Fifthly, the Court is not persuaded
that the applicant company’s partners were in a position to provide
the company with any additional funds, given the value of the initial
share capital of the applicant company and its subsequent financial
situation.

60. In respect of the Government’s
submission that the relevant court fee could not be considered disproportionate
in the light of the overall value of the claim sought, the Court observes
that it had not been suggested that the claim at issue was unmeritorious
or frivolous. The Court notes that the judicial authorities did not
refuse the exemption from the court fee at issue on the basis of the
manifestly ill-founded character of the claim, within the meaning of
Article 116 § 2 of the Code of Civil Procedure (see paragraph 30 above).
In any event, the Court’s review in the present case is limited to
the assessment of the applicant company’s ability to pay the fee at
issue. The Court also notes that the court fee that the applicant was
obliged to secure did not serve the interests of protecting the other
party against irrecoverable legal costs.

61. Furthermore, the Court considers
that restrictions on access to a court which are of a purely financial
nature and which, as in the present case, are completely unrelated to
the merits of the claim or its prospects of success, should be subject
to a particularly rigorous scrutiny from the point of view of the interests
of justice (see, mutatis mutandis, Podbielski and PPU Polpurev. Poland, no. 39199/98, § 65 in fine, 26 July 2005). It is also of significance for the
Court that the refusal to grant exemption took place at the preliminary
stage of the proceedings before the first-instance court and resulted
in the applicant company’s claims never being examined on the merits.

62. The Court observes that under Polish law an
exemption from payment of court fees can at any time be revoked by the
courts if the basis therefor has ceased to exist. Consequently, allowing
the applicant company to proceed with its claim at the initial phase
of the proceedings would not have prevented the Polish courts from collecting
court fees if at some further stage its financial situation had improved
(see paragraph 31 above).

63. Assessing the facts of the case as a whole
and having regard to the prominent place held by the right to a court
in a democratic society, the Court considers that the judicial authorities
failed to secure a proper balance between, on the one hand, the interest
of the State in collecting court fees for dealing with claims and, on
the other hand, the interest of the applicant company to pursue its
claims through the courts.

64. For the above reasons, the Court concludes
that the imposition of the court fees on the applicant company constituted
a disproportionate restriction on its right of access to a court. It
accordingly finds that there has been a breach of Article 6 § 1 of the
Convention.

II. APPLICATION OF ARTICLE 41 OF
THE CONVENTION

65. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

66. The applicant company sought an award
of PLN 864,897.23 in respect of pecuniary damage. That amount consisted
of the principal claim against the Best-Sat company (PLN 246,696.86)
and the statutory interest accrued on that claim from 16 October 1995
(PLN 618,200.37).

67. The applicant company also sought
an award of PLN 200,000 in respect of non-pecuniary damage. It submitted
that, in connection with the impossibility to recover its claims, the
company had to suspend its operation. It also lost its leading position
on the local market of companies specialising in the installation of
cable TV networks and any possibility of further business expansion.
The applicant company referred also to the obligation to pay the VAT
bill and to meet other compulsory financial obligations despite the
fact that its invoice had never been paid. In addition, the claim for
non-pecuniary damage concerned the stress and the deterioration of health
sustained by Mr M. Laprus, the owner and the President of the Board
of the applicant company, which was related to the loss of his professional
position and the source of his income.

68. Referring to the claim for pecuniary
damage, the Government submitted that there was no causal link between
the alleged violation of Article 6 § 1 of the Convention and the award
sought by the applicant company. As regards the claims for non-pecuniary
damage, the Government maintained that they were exorbitant and of a
highly speculative character. They invited the Court to rule that the
finding of a violation would constitute in itself sufficient just satisfaction.
In the alternative, the Government requested the Court to make an award
on the basis of its case-law in similar cases and the national economic
circumstances.

69. The Court finds no causal link between
the violation complained of and the pecuniary damage alleged. It cannot
speculate about the outcome of the proceedings had they been in conformity
with Article 6 § 1. The Court therefore rejects the claim in its entirety.

70. However, the Court accepts that the applicant
company has suffered non-pecuniary damage which is not sufficiently
compensated by the finding of a violation (see, mutatis mutandis, Comingersoll v. Portugal [GC], no. 35382/97, §§ 35-37, ECHR
2000-IV). Making its assessment on an equitable basis and having regard
to the circumstances of the case, the Court awards the applicant company
EUR 6,000 under this head.

B. Costs and expenses

71. The applicant company also claimed
PLN 20,496 for its legal representation before the Court.

72. The Government submitted that the
claim for costs and expenses was exorbitant. They invited the Court
to make an award, if any, only in so far as the costs and expenses were
actually and necessarily incurred and were reasonable as to quantum.

73. The Court considers it reasonable
to award the applicant EUR 2,000 for the costs and expenses involved
in the proceedings before it.

C. Default interest

74. The Court considers it appropriate
that the default interest should be based on the marginal lending rate
of the European Central Bank, to which should be added three percentage
points.

FOR THESE REASONS, THE COURT

1. Holds by 4 votes to 3 that there has been a violation of Article 6
§ 1 of the Convention;

2. Holds 4 votes to 3

(a) that the respondent State is to pay
the applicant, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, the
following amounts:

(iv) the above sums to be converted into
Polish zlotys at the rate applicable on the date of settlement;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;

3. Dismisses unanimously the remainder of the applicant’s claim
for just satisfaction.

Done in English, and notified in writing
on 10 January 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.

S. Naismith J.-P. Costa
Deputy Registrar President

In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the dissenting
opinion of Messrs Baka, Garlicki and Popović is annexed to this judgment.

J-P.C.*
S.H.N.*

DISSENTING OPINION OF JUDGES BAKA, GARLICKI
AND POPOVIĆ

It is with regret that we are unable to share
the majority’s position in this case. The Court considered that the
Polish judicial authorities failed to secure a proper balance between
the interests of the State and the interest of the applicant company.
The Court analysed the grounds given by the domestic courts in imposing
the court fees upon the applicant company and concluded that it “[did]
not find those grounds persuasive”.

We are not sure, however, whether this Court
is adequately equipped to assess particular facts of particular cases
and to contradict the domestic court’s findings concerning the company’s
gross and net profits (§ 55), the probability of the company’s being
wound up (§ 56), the practicability of securing the necessary funds
at earlier stages of the company’s activity (§ 58), the possibility
for the company to obtain a bank loan (§ 59) and, lastly, the willingness
of the company’s partners to provide it with additional funds (§
60). The domestic courts based their decision on careful assessments
of all relevant factors. Their decisions gave adequate reasoning and
were reviewed by higher judicial instances. The domestic courts had,
and used, every opportunity to research all relevant facts, to study
all relevant documents and to arrive at conclusions which were consonant
with those facts and documents. We wonder whether it is the task of
this Court to substitute its own judgments and assessments for those
adopted at the domestic level.

In our opinion, there are but two situations
in which the intervention of the Strasbourg Court would not give rise
to such reservations.

The first relates to a general legal regime
governing how court fees are calculated. Polish legislation provides,
as a rule, that court fees should represent 5% of the value of the claim.
It also provides for several possibilities of partial or total exemption.
This general rule has never been challenged by the Strasbourg Court.
Hence it may simply be the manner in which this rule is applied in particular
cases, which prompts the Court to find that the Convention has been
violated. But once the Court embarks upon an assessment of particular
applications of domestic legislation, it ventures into an area where
it must abide by the principle of subsidiarity.

Therefore, the only situation in which the Court’s
intervention seems always to be legitimate is when domestic decisions
and assessments are clearly arbitrary and/or discriminatory. But in
such situations the burden of proof lies with the Strasbourg Court.
In other words, the Court is always required to demonstrate that there
has actually been arbitrariness in the case. Hence it is not enough
to come to the conclusion that the domestic courts could have taken
better decisions and could have assessed the facts of a case differently.
Such a conclusion goes beyond the remit of the Strasbourg Court. That
is why, in the present case, the Court, instead of finding that the

domestic courts’
position was not persuasive, should have given its own persuasive arguments
as to the arbitrariness of their decisions.

Each commercial company must calculate its business
risks, particularly if, like in this case, it put all its resources
into one major transaction. Courts procedures (and courts fees) represent
an obvious component of business risk and when a company had not thought
about it in advance, it is not the task of the Strasbourg Court to compensate
its losses.

1. The applicant company’s
share capital was PLN 1,200.

2. Approximately 76,000
euros (“EUR”) at the relevant time.

3. Approximately EUR 13,700
at the relevant time.

4. Under the applicable
tax legislation, the company which issued an invoice must pay VAT on
the amount due in the month following the issue, regardless of whether
the debtor paid the invoice.